NO. 12-05-00208-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ANDRE LEGALE JENKINS, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
A jury convicted Appellant Andre Legale Jenkins of burglary of a habitation with the intent to commit aggravated assault and aggravated robbery. The jury also assessed punishment at sixty years of imprisonment and made an affirmative finding of a deadly weapon. Appellant raises five issues on appeal. We affirm.
Background
Appellant was indicted for burglary of a habitation with the intent to commit aggravated assault and aggravated robbery. See Tex. Pen. Code Ann. § 30.02 (a)(1) (Vernon 2003). Appellant pleaded “not guilty,” and the matter proceeded to a jury trial. The evidence showed that Willie Crumpton was asleep on the couch in his cousin’s front room about eight or nine o’clock in the morning when Appellant entered the house uninvited. Appellant grabbed Crumpton’s neck from behind. Appellant then hit Crumpton with his fist and threatened him with a large knife. Appellant rummaged in Crumpton’s pockets demanding money and drugs. Crumpton struggled free of Appellant’s grasp on his neck, arose, and turned to face Appellant. Appellant continued gesturing menacingly at Crumpton with the “large . . . saber-like knife” and demanding money. Crumpton said the knife did not come from his cousin’s house.
Crumpton’s cousin was awakened by the commotion. She came into the living room, which distracted Appellant and allowed Crumpton to run to the house next door to seek help. Appellant followed him and continued to menace him with the knife. Crumpton testified that he was afraid Appellant would cut him with the knife, and was concerned that Appellant could kill him. After threatening Crumpton for several minutes in the yard, Appellant left with his wife, who had been outside, and walked back to his parents’ house. Crumpton said he recognized Appellant because he had seen Appellant and his wife in the neighborhood. After the police arrived, they took Crumpton to Appellant’s parents’ house, and Crumpton identified Appellant, who was standing in a large crowd of people.
The jury found Appellant guilty of burglary of a habitation with the intent to commit aggravated assault and aggravated robbery as charged in the indictment and sentenced him to sixty years of imprisonment. The jury also made an affirmative finding of a deadly weapon. This appeal followed.
Batson Motion
In his first issue, Appellant complains that the trial court erred in denying his Batson1 motion. Specifically, he contends that the State engaged in purposeful discrimination by using its peremptory challenges to excuse four black venire members who were within the strike line and, when this conduct was challenged, did not provide race neutral explanations for its actions.
Applicable Law
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution forbids a prosecutor from challenging potential jurors solely on the basis of their race. U.S. Const. amend. XIV; Batson, 476 U.S. at 89, 106 S. Ct. at 1719.2 A defendant who makes a Batson challenge must first make a prima facie showing that the prosecutor has used a peremptory challenge to remove a potential juror on account of race. Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770, 131 L. Ed. 2d 834 (1995). A defendant may establish a prima facie case solely on evidence concerning the prosecutor’s exercise of peremptory challenges at trial. Batson, 476 U.S. at 96, 106 S. Ct. at 1723. To establish such a case, the defendant must first show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.3 He must also show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the venire members from the jury on account of their race. Id.
Once a defendant has made a prima facie showing, the burden shifts to the state to come forward with a race neutral explanation for challenging the venire members. Id., 476 U.S. at 97-98, 106 S. Ct. 1723-24. If the state offers race neutral reasons for the strikes, the defendant is afforded the opportunity to rebut those explanations. Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006). The defendant carries the burden to prove purposeful discrimination. Id. The trial court then will have the duty to determine if the defendant has established purposeful discrimination. Batson, 476 U.S. at 97-98, 106 S. Ct. at 1723-24.
Although a prima facie case of discrimination can be supported by the differential of strikes made by the prosecution among various races and ethnic groups, the critical step in the analysis of a Batson challenge is the prosecutor’s reason for any disparate striking of potential jurors based on similar responses to questions posed to the venire panel. See Miller-El v. Dretke, 545 U.S. 231, 241, 125 S. Ct. 2317, 2325, 162 L. Ed. 2d 196 (2005) (“If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.”). The credibility of the prosecutor’s reasons for disparate striking of jurors can be measured by, among other factors, “the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S. Ct. 1029, 1040, 154 L. Ed. 2d 931 (2003).
We will only disturb a trial court’s ruling on a Batson motion if it is “clearly erroneous.” Guzman v. State, 85 S.W.3d 242, 254 (Tex. Crim. App. 2002). Generally, a fact finder’s decision is clearly erroneous when it leaves an appellate court with a “definite and firm conviction that a mistake has been committed.” Id. (citing United States v. Fernandez, 887 F.2d 564, 567 (5th Cir. 1989)). The clearly erroneous standard is an especially rigorous one where the findings are based primarily on oral testimony and the trial judge has viewed the demeanor of the witnesses. Fernandez, 887 F.2d at 567; see also Alexander v. State, 866 S.W.2d 1, 8 (Tex. Crim. App. 1993).
We review the evidence in the light most favorable to the trial court’s ruling and afford great deference to that ruling. Jasper v. State, 61 S.W.3d 413, 422 (Tex. Crim. App. 2001). Furthermore, a claim that the proffered race neutral reasons for strikes are pretextual presents a question of fact, not law, and the trial court is in the best position to evaluate such claims. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004).
Application of Law
At the Batson hearing, Appellant pointed out that the State struck venire members4 number 8 (Ryder), number 11 (Reed-Towels), number 15 (Wallace), and number 19 (Allen), and stated that those persons were the only black members of the venire panel. The prosecutor responded that he had struck all who chose rehabilitation as the primary consideration in sentencing.
Venire Member Ryder. The prosecutor noted that Ryder said “rehab” was the primary consideration in sentencing. A venire member’s belief that rehabilitation is the primary consideration in punishment may be a race neutral reason for the use of a peremptory challenge. Victor v. State, 995 S.W.2d 216, 222 (Tex.App.–Houston [14th Dist.] 1999, pet. ref’d) (citing Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex. Crim. App. 1993)). Appellant countered that Caucasian venire member number 2 (Atwood), venire member number 3 (Stephenson), and venire member number 4 (Davis) also indicated a preference for rehabilitation. Atwood said, “[I]t depends on the situation, but if rehab is not going to do the job, then punishment should be done.” Stephenson said, “I believe if they’re being rehabilitated, but being punished at the same time, both of them.” Davis said, “I think it completely depends on the situation, and I just - - I guess I would have to go with punishment in the end, but I’d rather go with rehabilitation first.” As compared with Ryder’s unequivocal “rehab,” the responses of the other three are less absolute, and each discussed the merits of punishment as a consideration. Thus, Ryder’s answer is distinguishable from the answers of several venire members who were not struck, but who, according to Appellant, gave answers similar to Ryder’s.
Further, the prosecutor proffered additional explanations for not striking those three venire members. Atwood had been the victim of a burglary, which was the charged offense in Appellant’s case. Stephenson’s brother had been treated “very” fairly by law enforcement and the legal system when he had been arrested. Davis’s husband had been a juror in a previous case. Each of these additional explanations revealed further insights into the prosecutor’s evaluation of these venire members as prospective jurors, and are additional race neutral explanations for striking Ryder but not Atwood, Stephenson, and Davis.
Venire Member Reed-Towels. The prosecutor’s explanation for striking venire member Reed-Towels was that she said she needed more information to determine which was the more important sentencing consideration, rehabilitation or punishment. Failure to answer questions is a race neutral explanation for use of a peremptory challenge. Ester v. State, 151 S.W.3d 660, 662 (Tex. App.–Waco 2004, no pet.)
Venire Member Wallace. The prosecutor explained that venire member Wallace was the only person on his row who did not initially raise his card after the sentencing question was asked and had to be called upon for a response. Further, the prosecutor stated that Wallace “never gave an answer to whether or not [sentencing] was for punishment or rehabilitation.” When called on by the prosecutor, Wallace responded that it “depend[ed] on what’s the case, what he’s charged with.”
Failure to answer questions has been held to be a race neutral explanation for use of a peremptory challenge. Ester, 151 S.W.3d at 662. Inattentiveness is also a race neutral reason for exercising a peremptory challenge. Yarbrough v. State, 983 S.W.2d 352, 357 (Tex. App.–Fort Worth 1998, no pet.); Moore v. State, 811 S.W.2d 197, 199 (Tex. App.–Houston [1st Dist.] 1991, pet. ref’d).
Venire Member Allen. The prosecutor explained that he struck venire member Allen because she knew one of the witnesses in the case, Appellant’s mother, and her daughter is related to Appellant’s family. A venire member may be peremptorily challenged because she is acquainted with a defendant or his family. Thornton v. State, 925 S.W.2d 7, 11 (Tex. App.–Tyler, 1994, pet. ref’d).
Having reviewed the entire record, we conclude that the trial court’s decision to overrule Appellant’s Batson motion was not clearly erroneous. Even if a prima facie case of racial discrimination was established, the prosecutor provided race neutral explanations for his use of peremptory challenges, and Appellant failed to carry his burden of persuasion on the issue. See Yarbrough, 983 S.W.2d at 357 (“In the absence of evidence in the record to rebut the State’s race-neutral explanation, we will not disturb the trial court’s finding that the State’s explanation was legitimate.”). Therefore, Appellant’s first issue is overruled.
Denial of Motion for New Trial–Newly Discovered Evidence
In his second issue, Appellant argues that the trial court erred in denying his motion for new trial on the basis of newly discovered evidence, an alleged eyewitness. He states the issue as follows:
The trial court erred in denying Appellant’s Motion for New Trial because of newly discovered evidence of an eye witness [sic] who was with the complainant and the Appellant the entire night before the crime & [sic] present during the burglary of habitation with intent to commit aggravated robbery and aggravated assault, unknown to attorney, not due to lack of diligence, admissible evidence nothing like the trial evidence but meshing with trial evidence in such materiality, it will probably cause a different result if a new trial is ordered, infringing upon Appellant’s right to a jury trial, right to present witnesses and testimony in his behalf, cross examine witnesses against him, & [sic] right to assistance of counsel under the United States and Texas constitutions. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 40.001; (Clerk Rec. Pg. 96, Ground One, Motion New Trial).
Waiver
An appellant’s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). Further, state and federal constitutional issues should be argued separately, with authority and argument related to the individual protections offered by each constitutional right, “with separate substantive analysis or argument provided for each ground.” Coggin v. State, 123 S.W.3d 82, 87 (Tex.App.–Austin 2003, pet. ref’d) (citing Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993); Heitman v. State, 815 S.W.2d 681, 690-91 n.23 (Tex. Crim. App. 1991)). Appellant wholly failed to state the legal basis for the constitutional issues he identifies, cite applicable case law, or develop the legal arguments supporting his assertion that the named rights were violated. We decline to make Appellant’s arguments for him. See Muniz, 851 S.W.2d at 252. Therefore, Appellant’s constitutional issues are waived. However, we will address the merits of the argument Appellant actually made and supported with case law: whether the trial court erred in denying Appellant’s motion for new trial based on newly discovered evidence, a witness named Kent Towels.
Newly Discovered Evidence
Appellant asserts that he should have been granted a new trial because of a newly discovered eyewitness, Kent Towels. Appellant contends that his counsel did not know about Kent Towels prior to trial, and that Towels’s testimony is counter to the testimony of Crumpton, the victim.
A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial. Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon Pamph. Supp. 2006). A defendant is entitled to have his motion for new trial granted if he shows that (1) the newly discovered evidence was unknown to him at the time of trial; (2) his failure to discover the new evidence was not due to his lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). A defendant is not entitled to a new trial on the ground of newly discovered evidence when the evidence was that of which he was aware but failed to obtain by subpoena. Drew v. State, 743 S.W.2d 207, 227 n.16 (Tex. Crim. App. 1987). Nor is the defendant entitled to a new trial when he had knowledge of the evidence, but failed to communicate it to his attorney. Id. at 227 n.14.
The trial court has discretion to decide whether to grant a new trial based upon newly discovered evidence, and its ruling will not be disturbed absent an abuse of discretion. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002). Where, as here, the trial court conducts a hearing on a motion for new trial, the trial judge is the trier of fact and the sole judge of witness credibility. Woodall v. State, 77 S.W.3d 388, 393 (Tex. App.–Fort Worth 2002, pet. ref’d).
Towels did not testify at the hearing on the motion for new trial, but his affidavit was admitted into evidence at the hearing. Towels states in his affidavit that he was peeking through Crumpton’s front door when Appellant attacked Crumpton, but left while Appellant was still in Crumpton’s house. According to Towels’s affidavit, he would have testified that (1) he, Appellant, and Crumpton were together the night before the burglary, (2) Appellant obtained the knife he used against Crumpton while the three were together, (3) the knife was Crumpton’s knife, (4) Appellant entered the house, (5) a sleeping child was on Crumpton’s chest when Appellant entered the house, and (6) Appellant struck Crumpton in the face during the burglary, but did not take out the knife or threaten Crumpton with it while Towels was watching.
Generally, Towels’s affidavit supports the State’s allegations that Appellant entered Crumpton’s house and assaulted him. His statement that the knife belonged to Crumpton relates to a collateral matter and not to an element of the offense. Towels’s statement that he, Crumpton, and Appellant had been together the night before the burglary serves only to impeach Crumpton’s testimony that he did not know Appellant well. Towels’s statement that Appellant did not take out the knife or threaten Crumpton with it while Towels was watching is inconsistent with Crumpton’s trial testimony regarding Appellant’s use of the knife. The trial court reasonably could have resolved this inconsistency in favor of the State. The trial court also reasonably could have concluded that Towels’s testimony, if admitted, would not bring about a different result in a new trial.
Appellant knew that Towels lives across the street from Crumpton and, according to the affidavit, went to Towels’s house looking for Crumpton immediately before the burglary. Appellant does not assert that Towels was unavailable or missing before the trial. Yet, Appellant did not tell his counsel about Towels, make any pretrial attempt to learn what Towels knew about the incident, or subpoena him for trial. Consequently, the trial court reasonably could have concluded that Appellant did not use due diligence in discovering that Towels was an eyewitness.
The record supports the trial court’s conclusion that Appellant did not show himself entitled to a new trial because of newly discovered evidence. Therefore, the trial court did not abuse its discretion in denying Appellant’s motion for new trial on that ground. Appellant’s second issue is overruled.
Denial of Motion for New Trial Due–Competence to Stand Trial
In his third issue, Appellant argues that the trial court erred in denying his motion for new trial because
Appellant was not competent to stand trial while unable to assist his attorney by conveying crucial facts in trial preparation & [sic] unable to comprehend the ramifications of testimony against him during trial, infringing upon Appellant’s right to present evidence in his behalf & [sic] cross examine witnesses against him in a jury trial, right to assistance of counsel, right to due process of law & [sic] equal protection of the law under the United States and Texas Constitutions, & [sic] Code of Criminal Procedure of Texas. U.S. Const. amends. V, VI, XIV, § 1; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. arts. 46B.024 (1) (A).
As previously discussed, an appellant’s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). In support of this multifarious issue, Appellant cites only one case, Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903, 43 L. Ed. 2d 103 (1975), for the principle that a defendant’s mental condition may impact his due process right to a fair trial. Contrary to the requirement of Rule 38.1(h), Appellant has cited no authority supporting his argument that Appellant was incompetent to stand trial. Consequently, this issue is waived. However, even had Appellant not waived this issue, the result would not change.
Prior to trial, Appellant’s attorney raised the issue of competence. The trial court ordered Appellant examined by a licensed psychiatrist, Dr. Tynus McNeel. Dr. McNeel examined Appellant and concluded that he was competent to stand trial. Dr. McNeel filed a report of his findings with the court prior to trial. At the hearing on the motion for new trial, Appellant called as his witness on the issue of competence a licensed chemical dependency counselor. Specifically, Appellant called the counselor to testify regarding an interview he had with Appellant two months before the date of the charged offense. The State objected and contended that a licensed chemical dependency counselor was not qualified to testify as to Appellant’s competence to stand trial. The trial court sustained the State’s objection.
A person who testifies as an expert on a defendant’s competence to stand trial must be a licensed psychiatrist or psychologist and meet an extensive list of requirements. See Tex. Code Crim. Proc. Ann. arts. 46B.021, 46B.022 (Vernon Pamph. Supp. 2006). In this case, the licensed chemical dependency counselor testified about his qualifications, which did not meet the requirements of Article 46B.022. Therefore, he was not qualified to testify as an expert on Appellant’s competence. See id., art. 46B.022. Further, the evaluation he performed on Appellant occurred two months prior to the offense. Having failed to meet the requirements necessary to testify as an expert on Appellant’s competence, the trial court did not err in sustaining the State’s objection to the counselor’s testimony. Since there was no competent evidence adduced by Appellant on this issue, the trial court did not err in denying Appellant a new trial based on Appellant’s alleged incompetence to stand trial.
Appellant’s third issue is overruled.
Motion for New Trial–Exclusion of Evidence
In his fourth issue, Appellant contends the trial court erred at the hearing on the motion for new trial in sustaining the State’s objections to the testimony of the licensed chemical dependency counselor regarding his diagnosis and treatment of Appellant’s “dual diagnoses of suffering from drug dependency disorder and a mental health condition.”5
As stated above, an appellant’s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). Because Appellant has failed to make any legal argument or include appropriate citation to authorities, he has waived the issue. Muniz, 851 S.W.2d at 251; Heitman, 815 S.W.2d at 690-91 n.23; see also Tex. R. App. P. 38.1(h).
In an attempt to show that he was not competent to stand trial, Appellant wanted the licensed chemical dependency counselor to testify about his diagnosis and treatment of Appellant. As we noted in our discussion of Appellant’s third issue, Appellant failed to establish that the counselor was qualified to testify as an expert on the issue of Appellant’s competence. The trial court permitted the counselor to testify on a bill of review, which is included in the appellate record in this case. Nothing in the bill of review persuades us that the trial court erred in sustaining the State’s objections to this testimony.
Appellant’s fourth issue is overruled.
Motion for New Trial-Jury Charge Error
In his fifth and final issue, Appellant contends the trial court erred in denying the motion for new trial because of an erroneous jury instruction. Appellant’s issue is inadequately briefed, containing little relevant case law. Therefore, Appellant has waived this issue on appeal. Further, Appellant complains of jury charge error, but failed to object to the charge of which he now complains.
Appellant maintains that the omission of the phrase “as charged in the indictment” from the sentence “If you do not so find, or if you have a reasonable doubt thereof, you will find the defendant “Not Guilty” of burglary of a habitation”was structural error. This structural error, his argument continues, “could very well have been a factor in the jury coming back with a verdict of guilty . . . .” To obtain a reversal in the absence of an objection to a jury charge, Appellant must establish that the jury instruction of which he belatedly complains resulted in “egregious harm” to him at trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)(op. on reh’g). However, Appellant presents nothing more than a supposition without the benefit of supportive case law. Therefore, he has failed to comply with Rule 38.1(h), see Tex. R. App. P. 38.1(h), and we decline to make his argument for him. See Muniz, 851 S.W.2d at 252. Accordingly, Appellant has waived his fifth issue.
Appellant’s fifth issue is overruled.
Disposition
Having overruled Appellant’s five issues, we affirm the trial court’s judgment.
SAM GRIFFITH
Justice
Opinion delivered October 25, 2006.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
2 The Texas Legislature codified the Batson rule in Article 35.261 of the Texas Code of Criminal Procedure, but Appellant does not present a specific claim under that article.
3 In Batson, the Supreme Court reaffirmed that racial discrimination in the use of peremptory challenges denies a defendant the equal protection of the law guaranteed by the U.S. Constitution. Batson, 476 U.S. at 85, 106 S. Ct. at 1716. Since that time, the issue of discrimination in the use of peremptory strikes has also come to be understood in terms of a denial of the equal protection rights of prospective jurors. See Powers v. Ohio, 499 U.S. 400, 409-11, 111 S. Ct. 1364, 1370-71, 113 L. Ed. 2d 411 (1991). Furthermore, the cognizability of discrimination in the jury selection process has been extended to categories beyond race. See, e.g., Guzman v. State, 85 S.W.3d 242, 245-46 (Tex. Crim. App. 2002) (recognizing that Batson claim may be brought to challenge discriminatory exclusion of jurors on the basis of gender or ethnicity). Because Appellant brings a claim only under Batson and because he and the jurors who were struck are of the same cognizable racial group, we apply the Batson standard.
4 It is difficult to follow the discussion of which venire members responded in a certain manner and which were actually chosen for the jury because the attorneys sometimes identified the venire members by number and sometimes by name. Neither a jury list nor a juror strike list is included in the record. These lists would include both the names and the numbers of the venire members.
5 Appellant cited one case in this issue, Taylor v. State, 163 S.W.3d 277, 281 (Tex. App.–Austin 2005, pet. dism’d), which stands for the principle that a motion for new trial is not necessary to raise an issue on appeal. No cases were cited in support of the admissibility of the testimony of the licensed chemical dependency counselor.